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Cvetanovski v The Queen

Cvetanovski v The Queen

Case [2020] VSCA 272 30 October 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0199

ZLATE CVETANOVSKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2020
DATE OF JUDGMENT:	30 October 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 272
JUDGMENT APPEALED FROM:	DPP v Cvetanovski (Unreported, County Court of Victoria, Judge Montgomery, 13 April 2012)

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CRIMINAL LAW – Appeal – Conviction – Trafficking large commercial quantity of methylamphetamine – Failure by Victoria Police to disclose payments to principal witness – Whether non-disclosure caused substantial miscarriage of justice – Jury unable to assess credibility of witness – Crown concession of miscarriage – Concession properly made – Conviction quashed – Unjust to order re-trial – Verdict of acquittal entered – Criminal Procedure Act 2009 ss 276(1)(c) and 277(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Condon QC with Ms K Farrell	Galbally Parker Lawyers
For the Respondent	Mr B Kissane QC with Ms K O’Gorman	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA
WEINBERG JA:

On 26 April 2006, the applicant was arrested and interviewed as part of an investigation into high-level drug trafficking. On 14 April 2008, he was charged with trafficking a large commercial quantity of methylamphetamine. The information which led to the arrest had been provided to Victoria Police by a Mr Cooper.[1]
[1]A pseudonym.

In July 2011, the applicant was convicted by jury verdict of the trafficking charge. Mr Cooper was the principal prosecution witness at the applicant’s trial. On 13 April 2012, the applicant was sentenced to 10 years’ imprisonment on the trafficking charge.[2]
[2]On the same day he was sentenced on unrelated deception charges. With cumulation, the total effective sentence was 11 years’ imprisonment. A non-parole period of 9 years’ imprisonment was fixed.

At the time of the applicant’s arrest in April 2006, Ms Nicola Gobbo (then a member of the Victorian Bar) acted as his legal adviser. At that time, unbeknown to the applicant, Ms Gobbo was a registered police informer; was acting as Mr Cooper’s legal adviser; and had persuaded Mr Cooper to co-operate with police and incriminate the applicant.

Throughout 2006, Ms Gobbo had an extremely close personal relationship with Mr Cooper. She provided him with moral support, conducted welfare checks and made requests to Victoria Police to look after him.

In the course of 2006, Ms Gobbo and Victoria Police provided various forms of financial assistance to Mr Cooper whilst he was in custody. This included regular payments into his prison canteen fund, as well as one-off payments to him.

The applicant contends that his trafficking conviction should be set aside on the ground of non-disclosure. He says that there has been a substantial miscarriage of justice ‘because of the failure to disclose, and concealment of the fact,’ that Ms Gobbo was a police informer. As a result of the non-disclosure, the applicant says, he:

(a) was unable to challenge the admissibility of key evidence in his trial;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cvetanovski v The Queen

Details

AGLC: Zlate Cvetanovski v The Queen [2020] VSCA 272
Case: [2020] VSCA 272
Decision Date: 30 October 2020

CaseChat Overview and Summary

The case of Cvetanovski v The Queen involved an appeal against a conviction for trafficking a large commercial quantity of methylamphetamine. The appellant, Cvetanovski, argued that the failure by Victoria Police to disclose payments made to the principal witness had caused a substantial miscarriage of justice. The jury, unable to assess the credibility of the witness due to this non-disclosure, led to the Crown conceding that a miscarriage of justice had occurred. The High Court of Australia was tasked with determining whether the concession was properly made and whether it was just to order a re-trial or to enter a verdict of acquittal.

The primary legal issues before the court were whether the Crown's concession of a substantial miscarriage of justice was appropriately made and, if so, what the appropriate remedy would be under the Criminal Procedure Act 2009. The court had to consider the impact of the non-disclosure on the jury's ability to assess the credibility of the principal witness and whether this failure led to a substantial miscarriage of justice. Furthermore, the court needed to decide on the appropriate remedy in such a situation, balancing the principles of justice with the potential unfairness of ordering a re-trial.

The High Court found that the Crown's concession was properly made, as the non-disclosure of payments to the principal witness significantly affected the jury's ability to assess the witness's credibility. The court held that the failure to disclose these payments resulted in a substantial miscarriage of justice. Given that a re-trial would be unfair due to the potential for the witness to be unavailable, the court decided to enter a verdict of acquittal. This decision was based on the principles outlined in sections 276(1)(c) and 277(1) of the Criminal Procedure Act 2009, which provide for the entry of a verdict of acquittal when it is just to do so.

The final orders of the court were to quash the conviction of the appellant and to enter a verdict of acquittal. This decision ensures that the appellant is not subjected to the unfairness of a potential re-trial while also addressing the miscarriage of justice caused by the non-disclosure of payments to the principal witness.

Orders